B & B HARDWARE, INC., Plaintiff, v. FASTENAL COMPANY, Defendant No. 4:10–cv–00317–SWW December 16, 2011 Counsel Barry Clifford Snyder, Sean R. Burnett, Snyder Law, LLP, Santa Barbara, CA, Gordon S. Rather, Jr., Michelle Marie Kaemmerling, Troy A. Price, Wright, Lindsey & Jennings, Little Rock, AR, for Plaintiff. Jenny Thompson Garrett, Karen P. Freeman, Marshall S. Ney, Mitchell, Williams, Selig, Gates & Woodyard, PLLC, Rogers, AR, for Defendant. Wright, Susan W., United States District Judge OPINION AND ORDER *1 B & B Hardware, Inc. (B & B), a California corporation that manufactures and sells self-sealing fasteners, filed this action against Fastenal Company (Fastenal), a Minnesota corporation and international retailer and distributer of industrial and construction supplies, alleging that Fastenal breached an exclusive distribution agreement under which B & B would sell, and Fastenal would purchase and resell, B & B's patented self-sealing fastener. Summary judgment was granted in favor of Fastenal by United States District Judge Billy Roy Wilson, to whom the action was assigned, and that ruling is now on appeal with the United States Court of Appeals for the Eighth Circuit. Before the Court is Fastenal's Bill of Costs [doc. # 113] and Petition for Attorneys' Fees [doc. # 114], the action having been reassigned to this Court after the filing of these papers pursuant to “Judge Wilson's senior status option.” See Order of Reassignment dated October 17, 2011 [doc. # 121]. B & B has responded in opposition to Fastenal's Bill of Costs [doc. # 's 124, 126] and Petition for Attorneys' Fees [doc. # 's 122] and Fastenal has filed a reply to B & B's responses [doc. # 131]. In addition, B & B has filed, with leave of the Court, a supplemental response [doc. # 135] to Fastenal's Bill of Costs and Petition for Attorneys' Fees to address matters it claims were raised for the first time in Fastenal's reply. For the reasons that follow, the Court grants in part and denies in part Fastenal's Bill of Costs and Petition for Attorneys' Fees.[1] I. B & B filed this action against Fastenal on May 3, 2010, asserting claims of breach of contract, breach of the covenant of good faith and fair dealing sounding in contract, tortious interference with business expectancy, and violations of the Arkansas Deceptive Trade Practices Act. As previously noted, the action was assigned to Judge Wilson. On June 10, 2010, Fastenal filed a motion to dismiss [doc. # 12], contending that the distribution agreement under which the parties were operating automatically terminated under an automatic termination provision as early as May 1999, before any alleged breach, and that the agreement was not in effect during the time period covered by the complaint. By Order entered August 16, 2010 [doc. # 21], Judge Wilson denied Fastenal's motion to dismiss, finding that B & B stated plausible claims upon which relief can be granted. On February 7, 2011, Fastenal filed a motion for summary judgment [doc. # 30] again contending that the distribution agreement under which the parties were operating automatically terminated as early as May 1999 and that the agreement was not in effect during the time period covered by the complaint. In the alternative, Fastenal argued that it is entitled to summary judgment on B & B's claim for breach of the covenant of good faith and fair dealing sounding in contract. By Order entered March 3, 2011 [doc. # 42], Judge Wilson denied Fastenal's motion for summary judgment on its claim that the distribution agreement automatically terminated as early as May 1999—finding the automatic termination provision ambiguous—but granted summary judgment in favor of Fastenal on B & B's claim for breach of the covenant of good faith and fair dealing sounding in contract. *2 Following Judge Wilson's ruling on Fastenal's motion for summary judgment, discovery commenced on the remaining claims of B & B's complaint. Discovery proved contentious. For example, on April 29, 2011, B & B filed a motion to compel [doc. # 63] asking that the Court issue an order compelling Fastenal to meet its discovery obligations and to comply with the Court's prior scheduling order of April 5, 2011 [doc. # 48]. Judge Wilson referred B & B's motion to United States Magistrate Judge J. Thomas Ray for disposition, which Judge Ray denied by Order dated May 25, 2011 [doc. # 79]. In so ruling, Judge Ray chastised counsel for both parties, stating as follows: It is past time for the lawyers for both sides to begin to act less like armed combatants and more like the highly skilled professionals I know them to be. If the parties find it necessary to involve the Court in future discovery disputes, counsel for both sides are warned that their motion papers should be devoid of any further sturm und drang. On June 17, 2011, Fastenal filed a motion for summary judgment [doc. # 88] with respect to all of B & B's remaining claims. That same day, Fastenal also filed a motion asking that the Court stay discovery, including upcoming depositions of Fastenal executives in Minnesota, pending resolution of the motion for summary judgment. Fastenal argued that it is abundantly clear that no additional discovery is necessary as Fastenal's evidence, B & B's admissions, and B & B's documents conclusively establish that B & B's claims are time-barred and, moreover, B & B knew its claims were not warranted under existing law before it filed this action. B & B opposed Fastenal's motion to stay. On June 23, 2011, Judge Wilson held a telephone conference on Fastenal's motion to stay discovery. In opposing Fastenal's motion, B & B stated that because of the many inconsistent positions Fastenal has taken, it could not tell exactly what the position of Fastenal is as to whether there's a valid agreement, when Fastenal contends the limitation periods began to run, what documents Fastenal had in its possession, and what the parties knew, and that B & B “simply cannot answer all of those questions until we take these depositions and pin down [Fastenal] on [its] position” and that “[o]nly then can we properly respond to the motion for summary judgment.” Judge Wilson ruled as follows: All right. Here's what I'm going to do. I'm going to allow the depositions to go ahead, Mr. Rather [B & B's counsel]. Then I'll review your response to the depositions. But if I determine clearly that you could have pointed this out to me without the taking of the depositions, I'm likely going to assess fees and costs against [B & B] for the depositions. Marshall Ney, counsel for Fastenal, then informed Judge Wilson that all of the issues that Mr. Rather had just raised were covered by the fact that in Fastenal's motion for summary judgment, it was expressly stated that all what B & B alleged was assumed to be true and the motion for summary judgment was premised on B & B's documents. Judge Wilson then stated as follows: *3 Mr. Ney, I tell you what. You are liable to get a pocketful of attorney's fees and costs if you can establish to my satisfaction that that's correct after the depositions are taken and I read all of your papers. The Minnesota depositions went forward as scheduled. To facilitate the taking of those depositions, Judge Wilson appointed John C. Everett of Fayetteville, Arkansas, as a Special Master to oversee discovery during the Minnesota depositions. See Order entered June 28, 2011 [doc. # 97]. Following the Minnesota depositions, Judge Wilson, by Order entered August 24, 2011 [doc. # 110], granted summary judgment in favor of Fastenal on grounds that the statute of limitations had run on all of B & B's remaining claims. In so ruling, Judge Wilson did not address the propriety of the Minnesota depositions or otherwise impose attorneys' fees and costs against B & B for those depositions. On September 7, 2011, Fastenal filed its Bill of Costs and Petition for Attorneys' Fees. The following day, B & B filed a Notice of Appeal [doc. # 115] with the Eighth Circuit from Judge Wilson's August 24, 2011 ruling on its motion for summary judgment and that appeal remains pending. On September 16, 2011, B & B filed a motion to stay Fastenal's Bill of Costs and Petition for Attorneys' Fees until its appeal was resolved. By Order entered September 21, 2011 [doc. # 120], Judge Wilson denied B & B's motion to stay but granted B & B an extension of until November 7, 2011, in which to respond to Fastenal's Bill of Costs and Petition for Attorneys' Fees. In the meantime, the action was reassigned to this Court from Judge Wilson as set forth above. B & B subsequently filed its responses to Fastenal's Bill of Costs and Petition for Attorneys' Fees, Fastenal filed a reply to B & B's responses, and B & B filed a supplement to its responses.[2] II. In its Bill of Costs and Petition for Attorneys' Fees, Fastenal seeks costs pursuant to 28 U.S.C. § 1920 in the amount of $12,302.40 and attorneys' fees pursuant to Ark.Code Ann. § 16–22–308 in the amount of $298,275.00. In addition, Fastenal seeks excess costs and attorneys' fees against B & B's counsel pursuant to 28 U.S.C. § 1927 in the total amount of $102,219.27 ($5,744.27 in costs and $96,475.00 in attorneys' fees) on grounds that B & B's counsel multiplied the proceedings unreasonably and vexatiously. In seeking § 1927 sanctions, Fastenal states that it has deducted the amount of attorneys' fees it seeks pursuant to § 1927 from the attorneys' fees it seeks pursuant to Ark.Code Ann. § 16–22–308. Fastenal states, however, that should the Court determine that attorneys' fee under § 1927 are not properly taxed against B & B's counsel, those attorneys' fees in the amount of $96,475.00 should be awarded to Fastenal under Ark.Code Ann. § 16–22–308 for a total award of attorneys' fees in the amount of $394,750.00.[3] A. The Court first addresses Fastenal's argument that it is entitled to excess costs and attorneys' fees against B & B's counsel pursuant to 28 U.S.C. § 1927. Section 1927 provides that an attorney “who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the Court to satisfy personally the excess costs, expenses, and attorneys' fees reasonably incurred because of such conduct.” 28 U.S.C. § 1927. Section 1927 sanctions are proper “when an attorney's conduct viewed objectively, manifests either intentional or reckless disregard of the attorney's duties to the court.” Tenkku v. Normandy Bank, 348 F.3d 737, 743 (8th Cir.2003) (internal quotation and citation omitted). Because § 1927 is penal in nature, it should be strictly construed so that it does not dampen the legitimate zeal of an attorney in representing a client. Lee v. L.B. Sales, Inc., 177 F.3d 714, 718 (8th Cir.1999) (internal quotation and citation omitted). 1. *4 Fastenal argues that it is entitled to § 1927 sanctions on grounds that B & B's counsel proceeded with this litigation despite a clear statute of limitations bar. Fastenal states, through an affidavit of Mr. Ney, that after the parties had completed the massive and extraordinarily expensive discovery and Fastenal's counsel had reviewed the tens of thousands of documents B & B produced, Fastenal wrote a letter to B & B's counsel dated June 10, 2011, detailing in very specific fashion the overwhelming evidence that conclusively demonstrated B & B's claims were time-barred. Fastenal states that in light of that evidence, it asked B & B's counsel to dismiss its claims before Fastenal was put to the expense of any additional discovery and of the filing of an inevitable motion for summary judgment on limitations grounds but that B & B's counsel refused Fastenal's request. Fastenal states that it later contacted B & B's counsel to give him another opportunity to postpone the week of depositions in Minnesota pending Judge Wilson's ruling on the motion for summary judgment on limitations grounds and following Judge Wilson's reference to costs and attorneys' fees should the depositions prove unnecessary but that the depositions nevertheless went forward. Fastenal argues that B & B in fact had no need for the depositions or any additional discovery. As previously noted, Judge Wilson did not address the propriety of the Minnesota depositions or otherwise impose attorneys' fees and costs against B & B for those depositions and he did not characterize B & B's position on the statute of limitations issue as frivolous or improperly raised. B & B's statute of limitations arguments may, as suggested by Fastenal, be “hardly worth of praise” (although this Court is not making any such characterization) but those arguments are on appeal with the Eighth Circuit and the Court does not find at this time that those arguments are not “subject to reasonable dispute” such that § 1927 sanctions may be considered. Misischia v. St. John's Mercy Health Systems, 457 F.3d 800, 806 (8th Cir.2006).[4] Accordingly, the Court does not find that B & B's counsel manifested either intentional or reckless disregard of the attorney's duties to the court in proceeding with this litigation in the face of Fastenal's statute of limitations arguments.[5] 2. Fastenal also suggests that it is entitled to excess costs and attorneys' fees on grounds that B & B generally engaged in abusive discovery practices. In support of its argument, Fastenal argues that “[f]or the next four months” following Judge Wilson's March 3, 2011 Order [doc. # 42] granting in part Fastenal's motion for summary judgment, B & B “conducted discovery in a manner that Judge Ray referred to as ‘scorched earth discovery.’ “ It is true that Judge Ray referred to “scorched earth discovery” in footnote four of his May 25, 2011 Order [doc. # 79] denying B & B's motion to compel. The Court, however, does not read this reference as referring solely to B & B. Rather, Judge Ray suggested a different term for the title of B & B's motion to compel as being a “better term for the motion, since it suggests it can be used as a first strike weapon in scorched earth discovery.” A “first strike” presupposes that there is more than one combatant. Indeed, in denying B & B's motion to compel, Judge Ray, as previously noted, chastised counsel for both parties, stating, inter alia, that “[i]t is past time for the lawyers for both sides to begin to act less like armed combatants and more like the highly skilled professionals I know them to be.” *5 Even if B & B were largely the party to whom Judge Ray was referring with his “scorched earth discovery” reference, B & B was not alone in its ability to raise the ire of Judge Ray. On March 25, 2011, Fastenal filed a Motion to Quash Subpoenas and for Protective Order [doc. # 43], which Judge Wilson referred to Judge Ray for disposition. By Order dated April 15, 2011 [doc. # 57], Judge Ray denied as moot Fastenal's motion on grounds that all of the Fed.R.Civ.P. 45 subpoenas served by B & B on nonparties are facially invalid as B & B specified that the production and inspection of the requested documents was to take place in cities outside the state of Arkansas and more than 100 miles from the Eastern District of Arkansas. In so ruling, Judge Ray noted that he was “mystified by Fastenal's reference to some nebulous ‘personal right’ that gives it standing” and determined that at this stage in the proceeding, there was nothing to support Fastenal's “entirely hypothetical arguments, which it lacks standing to make,” that the Court should formally quash facially invalid Rule 45 subpoenas or enter a blanket protective order to shield all of the non-parties from any future properly issued Rule 45 subpoenas. Similarly, the Special Master appointed by Judge Wilson to oversee discovery during the Minnesota depositions stated in a telephone conference on June 28, 2011 that he believed that one of the attorneys for Fastenal “stepped over the line” with speaking objections, and he stated in rulings [doc. # 98] the following day that “the attorneys for [Fastenal] have repeatedly engaged in speaking objections to questions posed to the deponent and that such speaking objections are perilously close to coaching the witness.” In sum, based on the Court's review of the record, the Court finds that the discovery problems that undoubtedly occurred in this action cannot be attributed to one side only and does not in any case warrant sanctions under § 1927. Perhaps Judges Wilson and Ray, having had first-hand dealings with counsel and possibly aware of matters not reflected in the record, would come to a different conclusion[6] but this Court, viewing the actions of B & B's counsel objectively as reflected from the record, does not find that the discovery practices of B & B's counsel manifested either intentional or reckless disregard of the attorney's duties to the court. B. The Court now turns to Fastenal's Bill of Costs under 28 U.S.C. § 1920 and Petition for Attorneys' Fees under Ark.Code Ann. § 16–22–308. 1. In its Bill of Costs under § 1920, Fastenal seeks reimbursement in the total amount of $12,302.40 for the following expenses it states were necessarily incurred in the defense of this action: $247 .90 for costs of making copies of records received from third parties in response to B & B's subpoenas; $11,675.00 for the technical, specialized services necessary for responses to B & B's requests for electronically stored information (ESI); and $379.50 for copies made of correspondence between parties, discovery pleadings, and documents production. *6 Under § 1920, a judge or court clerk “may tax as costs” fees of the clerk and marshal, fees of the court reporter, fees and disbursements for printing and witnesses, fees for copies of any materials necessarily obtained for use in the case, docket fees, and compensation of court-appointed experts and interpreters. Under Fed .R.Civ.P. 54(d)(1), “costs other than attorneys' fees shall be allowed as of course to the prevailing party unless the court otherwise directs.” Brisco–Wade v. Carnahan, 297 F.3d 781, 782 (8th Cir.2002) (per curiam). See also Concord Boat Corp. v. Brunswick Corp., 309 F.3d 494, 498 (8th Cir.2002) (noting that when an expense, such as necessary photocopies, is taxable as a cost, there is a strong presumption that a prevailing party shall recover it in full measure) (internal quotation and citation omitted)). The losing party bears the burden of making the showing that an award is inequitable under the circumstances. Id. See also 168th and Dodge, LP v. Rave Reviews Cinemas, LLC, 501 F.3d 945, 958 (8th Cir.2007) (a prevailing party is presumptively entitled to recover all of its costs and the losing party bears the burden of overcoming the presumption that the prevailing party is entitled to costs, meaning that the losing party must suggest a rationale under which the district court's actions constitute an abuse of discretion). B & B states that it does not quarrel with any item of costs sought in Fastenal's Bill of Costs, save one: $11,675.00 for the technical, specialized services necessary for responses to B & B's requests for ESI. Accordingly, the Court awards Fastenal the following unopposed expenses it states were necessarily incurred in the defense of this action: $247.90 for costs of making copies of records received from third parties in response to B & B's subpoenas and $379.50 for copies made of correspondence between parties, discovery pleadings, and documents production, for a total of $627.40. With respect to the $11,675.00 Fastenal seeks for the technical, specialized services necessary for responses to B & B's requests for ESI, B & B argues that these costs are clearly in the nature of non-court appointed expert fees, namely for the services of an expert in the field of electronic data recovery, Iron Mountain, and are not recoverable. Fastenal, however, notes that B & B requested that documents be produced in an electronic format and that in responding to those requests, Fastenal did not utilize Iron Mountain's services. Rather, Fastenal states that in what resulted in a savings to B & B, it utilized Jeff Wood, a Litigation Information Technology Specialist with the Arkansas law firm representing Fastenal (Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C.), and Craig Weatherhead, Fastenal's IT Director, with the process of responding to the document requests in the electronic format that B & B requested. In this respect, Mr. Wood charged 92.5 hours “in performing the technical, specialized services necessary to produce the information [B & B] requested” at a billing rate of $110.00 per hour, for a total of $10,175.00, and Mr. Weatherhead charged 24 hours “in locating, collecting and extracting the ESI [B & B] requested” at an hourly rate of $62.50 for a total of $1,500.00.[7] *7 Courts within the Eastern District of Arkansas have generally determined that costs incurred in copying documents to be produced during discovery are not taxable as costs under § 1920(4). See, e.g ., Little Rock Cardiology Clinic, P.A. v. Baptist Health, No. 4:06cv01594 JLH, 2009 WL 763556, at *4 (E.D.Ark. March 19, 2009) (in denying costs associated with reproduction of ESI, document scanning, and CD–ROM production in response to discovery requests, court noted that this district historically has not awarded as costs under § 1920(4) the expense of copying documents during discovery, and that the practice in this district is consistent with the practice in other districts of the Eighth Circuit), aff'd 591 F.3d 591 (8th Cir.2009).[8] However, at least one district within the Eighth Circuit that has addressed in the electronic discovery context the discovery-related copying or copying of documents not otherwise admitted at trial has concluded that “ ‘the electronic scanning of documents is the modern-day equivalent of ‘exemplification and copies of paper,’ and, therefore, can be taxed pursuant to § 1920(4).” Advance Brands, LLC v. Alkar–Rapidpak, Inc., No. 08–cv–4057–LRR, 2011 WL 4352495, at *6 (N.D.Iowa Sept. 15, 2011) (quoting Brown v. McGraw–Hill Cos., Inc., 526 F.Supp.2d 950, 959 (N.D.Iowa 2007)). Courts in other jurisdictions have reached a similar conclusion. See, e.g., Race Tires America, Inc. v. Hoosier Racing Tire Corp., No. 2:07–cv–1294, 2011 WL 1748620, at *6 & n.6 (W.D.Pa. May 06, 2011) (many courts include e-discovery costs as being recoverable costs under § 1920(4)) (collecting cases)).[9] “[E]-discovery has become a necessary and sometimes costly function of civil litigation,” see Race Tires America, 2011 WL 1748620, at *1, and the Court finds in these circumstances that Fastenal's e-discovery costs are recoverable costs under § 1920(4).[10] B & B does not dispute that it requested that Fastenal provide information in specific electronic formats and that Fastenal's servers or certain computers be searched for ESI. In this respect, Fastenal notes, and B & B does not dispute, that B & B made repeated requests for Fastenal's ESI from an 11–year period and from 10 different custodians of Fastenal ESI, that B & B's requests required Fastenal to extract over 150 gigabytes of raw data for the 10 custodians named by B & B, that once the raw data was retrieved from the server and physical computers the extracted data was run through a keyword filter, and that this filtering process reduced the raw data from 150 gigabytes to 11.88 gigabytes of filtered data, which counsel for Fastenal was required to review for responsiveness and to code for privilege. Given the extensive e-discovery that Fastenal was required to conduct, the Court in these circumstances finds that allowing a prevailing party to recover the costs of providing ESI where the opposing party requested that responsive documents be produced in certain electronic formats is appropriate. Cf. Race Tires America, 2011 WL 1748620, at *8 (courts have allowed a prevailing party to recover the costs of converting paper documents into electronic files where the parties agreed that responsive documents would be produced in electronic format) (collecting cases)). Accordingly, the Court determines that B & B has not carried its burden to show that the award of costs for e-discovery is inequitable and awards Fastenal, in addition to the other costs referenced above, $11,675.00 for the technical, specialized services necessary for responses to B & B's requests for ESI. 2. *8 Turning to Fastenal's request for attorneys' fees under Ark.Code Ann. § 16–22–308, the Court finds that Fastenal is a prevailing party in this action, having prevailed on all of B & B's claims, including B & B's breach of contract claims. Accordingly, Fastenal is entitled to reasonable attorneys' fees pursuant to Ark.Code Ann. § 16–22–308, which provides that the prevailing party in a breach of contract action may be allowed a reasonable attorney's fee to be assessed by the court. See also Perry v. Baptist Health, 368 Ark. 114, 117, 243 S.W.3d 310, 313 (2006) (a successful defendant in a contract action may be considered a prevailing party for the purposes of the statute—Ark. Code Ann. § 16–22–308—allowing award of attorney's fees to prevailing party).[11] A. The following factors are relevant in determining reasonable attorney's fees: (i) the experience and ability of the attorney; (ii) the time and labor required to perform the service properly; (iii) the amount in controversy and the result obtained in the case; (iv) the novelty and difficulty of the issues involved; (v) the fee customarily charged for similar services in the local area; (vi) whether the fee is fixed or contingent; (vii) the time limitations imposed upon the client in the circumstances; and (viii) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the attorney. Chrisco v. Sun Indus., Inc., 304 Ark. 227, 229, 800 S.W.2d 717, 718–19 (1990). See also Harrill & Sutter, PLLC v. Kosin, 2011 Ark. 51, at *17, ––– S.W.3d ––––, 2011 WL 478604 (2011). While courts should be guided by the foregoing factors, there is no fixed formula in determining the reasonableness of an award of attorney's fees. Phelps v. U.S. Credit Life Ins. Co., 340 Ark. 439, 442, 10 S.W.3d 854, 856 (2000). In addition, when a trial judge is familiar with the case and the services performed, the fixing of a fee is within the discretion of the court even in the absence of proof of the nature and extent of the attorney's services. Hartford Acc. & Indem. Co. v. Stewart Bros. Hardware Co., 285 Ark. 352, 354, 687 S.W.2d 128, 129 (1985). i. Concerning the experience and ability of the attorney, the Court finds that counsel for Fastenal are experienced attorneys with excellent legal skills. ii. Concerning the time and labor required to perform the service properly, the Court finds that counsel committed substantial time and effort to the defense of B & B's claims. Every aspect of this case, it appears, was disputed and much time and energy required. iii. Concerning the amount in controversy and the result obtained in the case, B & B sought many millions of dollars and yet Fastenal prevailed on all of B & B's claims.[12] iv. Concerning the novelty and difficulty of the issues involved, the Court finds that the issues at stake were significant and aggressively litigated against a factual background that apparently was somewhat difficult to piece together. This litigation involved millions of dollars and much time spent on the case. v. *9 Concerning the fee customarily charged for similar services in the local area, counsel for Fastenal at the Arkansas law firm of Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C. billed Fastenal for 1,579 hours at a rate of $250.00 per hour, for a total of $394,750.00.[13] Counsel for Fastenal note that a $250.00 hourly rate is lower than the rate typically charged by Fastenal's lead lawyers, but represents a negotiated, blended rate for the work performed on the case. Counsel argue that this rate and the time spent on this matter are reasonable given the experience and location of the attorneys, the complexity of the issues raised, and the potential exposure to the client. As to the hourly rates proposed by counsel, a reasonable hourly rate is generally the prevailing market rate, that is, the ordinary rate for similar work in the community where the case has been litigated. Moysis v. DTG Datanet, 278 F.3d 819, 828 (8th Cir.2002). The party requesting the fee award bears the burden of substantiating the requested rate as well as the hours expended. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). In All-ways Logistics, Inc. v. USA Truck, Inc., No.3:06cv0087, 2007 WL 4285410, at *10 (E.D.Ark. Dec. 4, 2007), a case very similar to this one in many respects, this Court in 2007 examined cases setting hourly rates and rejected an hourly rate of $400.00 but determined that an attorney possessing the experience and skills of counsel for plaintiff could reasonably command in Northeast Arkansas for that type of case under similar circumstances an hourly attorney rate of $300.00. Here, as in All–Ways, there is no dispute of the experience and excellent legal skills of counsel for Fastenal and the aggressive and time-consuming nature of this complex litigation, and the Court finds that an attorney possessing the experience and skills of counsel for Fastenal could reasonably command in central Arkansas for this type of case under similar circumstances an hourly attorney rate of at least $250. Cf. Hall v. Davis H. Arrington Oil and Gas, Inc., No. 2:09cv00091 BSM, 2011 WL 780611, at *2 (E.D.Ark. March 02, 2011) (lead counsel billed 37.20 hours at a rate of $275.00 per hour; a junior partner billed 75.6 hours at $225.00 per hour; and an associate billed 53.21 hours at $175.00; court found that given the complexity of the case and the number of issues raised therein, these fees were reasonable); U.S. ex rel. Rille v. Hewlett Packard Co., No. 4:04cv00989 BRW, 2011 WL 4625646, at *5 (E.D.Ark. Oct. 05, 2011) (concluding that local rates applied to out-of-state counsel, and considering that the case was complex and spanned years and thousands of billable hours, court found that hourly rates for out-of-state counsel of $375.00 for all partners, $275.00 for senior associates, and $200.00 for associates was reasonable, and that $300 .00 and $250.00 respectively for partners of local law firm, was reasonable); Microsoft Corp. v. Delta Computer Experts, LLC, No. 5:08cv0168 BSM, 2009 WL 348268, at *1–2 (E.D.Ark. Feb. 11, 2009) (court found that hourly rates of $250.00 for lead counsel who was of counsel with law firm and $210.00 for associate of that law firm were reasonable). Given that lead counsel is charging a rate lower than typical and that the vast majority of the hours billed were from partners and counsel of law firm, the Court agrees that in these circumstances, a $250.00 hourly rate representing a blended rate for the work performed on the case is appropriate.[14] vi. *10 Concerning whether the fee was fixed or contingent, the fee in this case obviously was fixed. vii. Concerning the time limitations imposed upon the client in the circumstances, Fastenal clearly was intimately involved in the discovery process and other aspects of the litigation. The Court finds that the time limitations imposed on Fastenal were not insignificant. viii. Finally, concerning the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the attorney, the Court, based on its familiarity with the case, finds that the time limitations imposed upon counsel for Fastenal while the case was actively being litigated was not insignificant. B. Having addressed the Chrisco factors, the Court now addresses Fastenal's request for attorneys' fees under Ark.Code Ann. § 16–22–308 utilizing the lodestar method, which is calculated by multiplying the number of hours reasonably expended by the reasonable hourly rates. Hanig v. Lee, 415 F.3d 822, 825 (8th Cir.2005). See also Coorstek, Inc. v. Electric Melting Services Co., Inc., No. 4:06cv01726 JMM, 2009 WL 646307, at *1–2 (E.D.Ark. March 10, 2009) (utilizing Lodestar method to determine attorney fees under Ark.Code Ann. § 16–22–308). The attorneys that worked on the case, the number of hours they billed, and the hourly rates at which they billed their hours, is as follows: Name Position Rate Hours Fees Marshall S. Ney Partner $250.00/hr. 55.2 $13,800.00 Alex T. Gray Associate $250.00/hr. 95.1 $23,775.00 Leigh Anne Yeargan Partner $250.00/hr. 39.9 $9,975.00 Delena C. Hurst Associate $250.00/hr. 143.3 $35,825.00 Anton L. Janik, Jr. Counsel $250.00/hr. 103.7 $25,925.00 Jenny T. Garrett Associate $250.00/hr. 99.3 $24,825.00 Karen P. Freeman Counsel $250.00/hr. 1,042.5 $260,625.00 Total 1,579.0 $394,750.00 B & B does not contest the individual time entries set forth in counsels' time records but only argues that certain broad matters, such as time spent on an attempt to intervene by a third party, are not compensable. The Court has examined those matters referenced by B & B and finds that counsel for Fastenal are not seeking attorneys' fees for any matters for which attorneys' fees should not be awarded. In sum, based on the Chrisco factors and the Court's familiarity with the record and quality of service rendered, the Court finds that counsel for Fastenal is entitled to be compensated for 1,579 hours at an hourly rate of $250.00 for the successful defense of B & B's claims. Accordingly, the Court finds that an award of attorneys' fees to Fastenal in the amount of $394,750.00 is reasonable. III. For the foregoing reasons, the Court grants in part and denies in part Fastenal's Bill of Costs [doc. # 113] and Petition for Attorneys' Fees [doc. # 114], and denies as moot Fastenal's supplemental motion for attorneys' fees and costs [doc. # 118]. The Court awards Fastenal costs pursuant to 28 U.S.C. § 1920 in the total amount of $12,302.40 and attorneys' fees pursuant to Ark.Code Ann. § 16–22–308 in the total amount of $394,750.00. *11 IT IS SO ORDERED. Footnotes [1] Fastenal also filed a “Supplement to its Petition for Attorneys' Fees and Bill of Costs” [doc.# 118] (docketed as a motion) in which it argued that the State of California recently suspended the powers, rights, and privileges of B & B and that a delinquent corporation may not sue another party or defend itself in litigation. B & B responded in opposition to Fastenal's supplement [doc. # 128] by submitting documentation that B & B was relieved of suspended status as of September 23, 2011 and is now in good standing with the State of California and arguing that nothing now remains of Fastenal's attempt to prevent B & B from defending itself against Fastenal's Bill of Costs and Petition for Attorneys' Fees. The Court notes that the Eighth Circuit recently denied Fastenal's motion to dismiss the appeal on the basis of B & B's suspended status after B & B submitted documentation that B & B was relieved of suspended status and Fastenal does not raise the issue in its reply to B & B's responses to its Bill of Costs and Petition for Attorneys' Fees. It thus appears that the issue of B & B's status as a suspended corporation is now a moot issue. Accordingly, the Court denies as moot Fastenal's supplemental motion for attorneys' fees and costs [doc.# 118]. [2] B & B also filed a motion to strike certain matters in Fastenal's reply as being raised for the first time, which this Court denied by Order entered December 6, 2011 [doc.# 134]. The Court did, however, allow B & B to supplement its responses to address those matters allegedly raised for the first time. See Id. [3] B & B requests a hearing on Fastenal's Bill of Costs and Petition for Attorneys' fees. Rule 54(d)(2)(C) of the Federal Rules of Civil Procedure provides that on a party's request, the Court must “give an opportunity for adversary submissions on the motion in accordance with Rule 43(c) or 78.” In accordance with Rule 78, the Court finds that Fastenal's motion for attorneys' fees can be decided based on the submissions before the Court and that a hearing is not necessary. [4] Fastenal argues that an award under § 1927 is particularly appropriate as there is at least one recent, significant judgment that has been entered against B & B but which has not been satisfied. See B & B Hardware, Inc. v. Hargis Industries, Inc., No. 4:06cv01654 SWW (E.D.Ark. Dec. 29, 2010) (this Court awarded attorneys' fees and expenses against B & B in the amount of $665,534 .13). The Court notes, however, that B & B Hardware, Inc. v. Hargis Industries, Inc., is a separate action with its own circumstances and Fastenal cites no authority suggesting that the Court may consider the conduct of counsel in that action in imposing sanctions in this action. [5] B & B's request that Mr. Ney's affidavit be stricken from the record is denied as moot. [6] Although, as previously noted, Judge Wilson did not address the propriety of the Minnesota depositions or otherwise impose attorneys' fees and costs against B & B for those depositions. [7] In its supplemental response [doc. # 135] to Fastenal's Bill of Costs and Petition for Attorneys' Fees, B & B does not dispute Fastenal's representation that Fastenal did not utilize Iron Mountain's services with the process of responding to the document requests in the electronic format that B & B requested. In addition, B & B does not challenge the number of hours charged by Mr. Wood or Mr. Weatherhead and it does not challenge their hourly rates. [8] This Court, following the general practice of this district, likewise has determined that costs incurred in copying documents to be produced during discovery are not taxable as costs under § 1920. See, e.g., Platte River Ins. Co. v. Baptist Health, No. 4:07cv0036 SWW, 2009 WL 2044610, at *3 (E.D.Ark. July 10, 2009) (citing Little Rock Cardiology Clinic, 2009 WL 763556, at *4)). But cf. B & B Hardware, Inc. v. Hargis Indus., Inc., No. 4:06cv06154 SWW, 2010 WL 3655737, at *2 (E.D.Ark. Sept. 9, 2010) (this Court rejected B & B's challenge to request for $2,674.75 incurred in-house for copies of documents made since July 31, 2009, including correspondence between the parties, discovery, pleadings, and document production, despite B & B's assertion that there was no evidence these copies were used at trial or were otherwise necessary for the case). [9] In Little Rock Cardiology Clinic PA v. Baptist Health, 591 F.3d 591, 601–02 (8th Cir.2009) (the appeal from the district court's decision in Little Rock Cardiology Clinic referenced above), the Eighth Circuit found that the district court did not abuse its discretion in refusing to tax discovery-related copying expenses—construing the district court's decision as an exercise of the district court's discretion rather than one ruling as a matter of law—and did not address the issue of whether costs for scanning documents and reproducing ESI are taxable under § 1920(4). As noted in Advance Brands, the Eighth Circuit in Little Rock Cardiology Clinic noted only that “nothing requires a district court to tax discovery-related expenses” and that the Eighth Circuit “has left the matter to the district court's discretion.” 2011 WL 4352495, at *6 (quoting Little Rock Cardiology Clinic, 591 F.3d at 602) (emphasis in original)). [10] Much e-discovery is highly technical in nature and not the type of services that attorneys or paralegals are able to provide without assistance from IT specialists, whether from in-house staff or outside vendors. From a policy perspective, it has been argued that “[i]n the case of e-discovery, where a party perceives that it can obtain leverage in a case by inflicting burden on another through discovery requests, it has an incentive to ‘push the edges of the envelope’ in pursuing such requests” and that “[t]he risk of the imposition of the costs of e-discovery at the end of a case ... may serve to recalibrate the incentives, and encourage a more reasonable, efficient and targeted approach to discovery.” Steven C. Bennett, Are E–Discovery Costs Recoverable by a Prevailing Party?, 20 Alb. L.J. Sci. & Tech. 537, 556 (2010). [11] A litigant is a prevailing party under Ark.Code Ann. § 16–22–308 “in terms of the entire case, and not in terms of particular issues or actions therein.” Id. The prevailing party is determined by who comes out “on top” at the end of the case. Id. (citation omitted). In addition, attorney's fees are recoverable where the action is based primarily in contract. Reed v. Smith Steel, Inc., 77 Ark.App. 110, 126, 78 S.W.3d 118, 121 (2002) (noting that when both contract and tort claims are asserted, attorney's fees are recoverable where the action is based primarily in contract). Here, Judge Wilson stated in his August 24, 2011 ruling on Fastenal's motion for summary judgment that B & B's tortious interference and ADTPA claims are “based on the same conduct as the breach of contract claim” and B & B acknowledges that Judge Wilson “viewed these claims as variations on the breach of contract theme” (although it claims that Judge Wilson did so “[w]ithout sufficient reasoning”). Accordingly, the Court determines that B & B's action is based primarily in contract. [12] Fastenal states that according to B & B's damages expert and a press release B & B prepared before this action was filed, B & B sought compensatory damages of more than $127,000,000.00 and punitive damages of not less than $930,000,000.00. [13] This includes attorneys' fees in the amount of $96,475.00 originally sought under § 1927 that Fastenal argues should be awarded to Fastenal under Ark.Code Ann. § 16–22–308 if the Court determines (which it has) that § 1927 sanctions are not appropriate. The Court will consider the $96,475.00 in attorneys fees originally sought under § 1927 under Ark.Code Ann. § 16–22–308 as B & B has not objected to the Court so proceeding. [14] Of the 1,579 hours billed by counsel for Fastenal, 1,241.3 of those hours were billed by partners and counsel of the law firm, while 337.7 of those hours were billed by associates of the law firm.